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Steven G. Bradbury

Acting Assistant Attorney General for the Office of Legal Counsel
U.S. Department of JusticeBiography

September 18, 2006

Steven G. BradburyIn response to the Supreme Court's decision in the case of Hamdan v. Rumsfeld, the President has recommended to Congress legislation that would establish effective and fair procedures for military commissions to bring to justice captured terrorists who have committed war crimes. The President's bill would also provide clarity and certainty concerning the legal standards that apply to U.S. personnel who handle captured terrorists in the War on Terror, so that we can continue to have the vital tools necessary to protect the country, consistent with our values as a nation and our international commitments. By a bipartisan vote of 52-8, the House Armed Services Committee has approved the President's legislation. The Administration is currently working with the Senate to find common ground for legislation that will achieve these essential goals.

Separately, the President has called on Congress to pass legislation updating the Foreign Intelligence Surveillance Act and affirming the President's authority to conduct effective electronic surveillance of al Qaeda communications into and out of the United States, to help detect and prevent another catastrophic attack on our homeland. The Senate Judiciary Committee has approved legislation sponsored by Senator Specter that would do just that, and the House is considering similar legislation. The Administration continues to work with Congress to complete work on this vital legislation.

I'm happy to answer questions on these important issues.

Kim, from Kentucky writes: Hi Mr. Bradbury, I think that the anti-terror legislation currently
before Congress is an important tool to protect the freedom's that this
country holds dear. It would be sweet justice to see the masterminds of
attacks against our country be put to trial and face repercussions for
their crimes. In regard to the military tribunal legislation, is the
difficulty here that these criminals are not represented by a country
and therefore there are no current guidelines under the Geneva
Convention? Thank You

Steven G. BradburyThe President agrees with you that it is time to bring the masterminds of the 9/11 atrocities to justice, along with those responsible for the bombings of the U.S.S. Cole and the U.S. Embassies in East Africa. Some of those suspected of these heinous crimes are among the 14 key al Qaeda leaders and operatives that the President recently announced have been moved to Guantanamo Bay. These are terrorists who have provided vital intelligence in the War on Terror through questioning by the CIA. And now that we have obtained the most important intelligence we can gain from them, it is high time we put them on trial for their war crimes. Under the Supreme Courts decision, however, the President needs express authorization from Congress to establish the procedures for fair and effective military commissions to try these terrorists. These al Qaeda terrorists are not POWs entitled to the privileges that apply to regular armed forces under the Geneva Conventions. The Geneva Conventions do require, however, that they be afforded the basic judicial guarantees deemed indispensable by civilized nations. In its Hamdan decision, the Supreme Court said that Congress must define those procedures. Otherwise, these terrorists would have to be tried through the same court-martial procedures afforded to our own troops. The President believes that it is neither practical nor appropriate to give the terrorists all of the same procedural protections that apply to the trials of our own troops and citizens, and there is a broad agreement on that in Congress.

Gustav, from Durango, CO
writes: Why does the president think the strongest nation in the history of the
world needs to resort to torture to win the war against terrorists?

Steven G. BradburyHe doesnt. The United States does not torture. The President has not authorized torture and has made clear that he will not do so. United States law already bans torture. Furthermore, the legislation proposed by the President reaffirms that torture and other similar forms of cruel and abusive treatment are illegal under U.S. law and constitute war crimes. In Hamdan, the Supreme Court held that Common Article 3 of the Geneva Conventions applies to our armed conflict against al Qaeda. Common Article 3 provides basic standards of treatment for persons in our custody, just as does the Detainee Treatment Act (sometimes called the McCain Amendment) that the President signed into law in December 2005. Many of the prohibitions of Common Article 3, such as prohibitions on torture, mutilation, and taking of hostages, are clear and universally understood. We do not have any intention of violating those proscriptions. But other provisions of Common Article 3 are hopelessly vague and subject to almost unlimited interpretation  such as its prohibition on outrages upon person dignity, in particular, humiliating and degrading treatment. The question that is before the Senate right now is how to bring clarity and certainty to those vague prohibitions, so that our men and women in the intelligence and military services who are asked to handle captured terrorists to obtain the intelligence that is vital to protecting the country will know precisely what is permissible under Common Article 3.

Kathleen, from Maryland writes: By using "shocks the conscience" as the standard, how does such a
flexibe standard create clarity, which is what the President is
demanding?

Steven G. BradburyThe basic standard of treatment adopted by the United States in the Detainee Treatment Act is a prohibition on the cruel, unusual, or inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution. For persons in U.S. detention who have not yet been adjudged guilty of a crime, the relevant standard is that provided under the substantive due process precedents of our Fifth Amendment. Although this standard is in certain contexts flexible, as you suggest, still it provides much-needed clarity over the current hopelessly vague provisions of Common Article 3, because it is based on the familiar principles of our own Constitution and is fleshed out in precedents of our own Supreme Court. Without grounding the understanding of Common Article 3s vague provisions in our own law and Constitution, the meaning of those provisions will be subject to infinite interpretation, including the evolving interpretations of international tribunals and foreign governments, and will offer little guidance and certainty to our own personnel.

Benny, from Tucson, AZ
writes: Why do Colin Powell, John McCain, Lindsey Graham, John Warner and Susan
Collins insist that statutory clarification of what "inhumane and
degrading treatment," as used in the Detainee Treatment Act, and in
Common Article 3 of the Geneva Conventions, would cause the "world
community" to assume that the U.S. is now taking a position of
non-compliance with the Geneva Conventions by "reinterpreting" or
"redefining" the conventions. We currently have a Reservation to
Article 3 that defines "torture." What is so different about defining
"inhumane and degrading treatment?"

Steven G. BradburyThe Secretary of State has said that she supports the Presidents recommendation for Congress to define the vague terms of Common Article 3 by reference to the Detainee Treatment Act and our own constitutional principles. Nations are free to give ambiguous treaty terms a good faith interpretation consistent with their own domestic laws and traditions. Congress clearly has authority to do so, and has interpreted many other treaty provisions through implementing statutes like this. The Secretary of State has said that she is confident our international partners will accept our effort to give reasonable and clear meaning to our treaty obligations, as proposed by the President. Indeed, the President believes that giving clarity and definition to Common Article 3s hopelessly vague terms through legislation will actually strengthen our adherence to Common Article 3.

Cliff, from Brimfield, Ohio
writes: Attorney General Bradbury: Do you see the President and Congress finding
some ground on the issue? Not high ground or low ground but COMMON
GROUND. They both seem to be digging in. Thank You

Steven G. BradburyI do believe that the President and Congress will find common ground on these important issues. We all want to protect our country through vital intelligence programs while upholding our values as a nation and our international commitments. We must and, I believe, will reach a common understanding on a way forward that will ensure that we do so.

Erik, from Miami, Florida
writes: If the interrogations of US detainees is and always has been legal, why
are legislative changes necessary to continue 'interrogating' detainees?
If our 'interrogators' have been doing this for five years, and it was
legal, why do we need changes now?

Steven G. BradburyThe short answer is because of the Hamdan case. There, the Supreme Court has now told us for the first time, contrary to the determination made by the President in February 2002, that our armed conflict with the international terrorist organization al Qaeda is actually not an international conflict and therefore that Common Article 3 of the Geneva Conventions applies to protect captured al Qaeda terrorists. That decision requires us to bring clarity and certainty to the terms of Common Article 3  especially because U.S. law currently makes any violation of Common Article 3 a war crime.

Jordan, from Kennewick, WA
writes: How will the terror legislation impact our ability to fight terrorism
around the globe?

Steven G. BradburyThe President has said that it is vitally important for the security of the United States and our personnel and allies in the War on Terror that we have the ability to obtain critical intelligence from captured terrorists. To do so, we must have clarity and certainty on the rules and standards that will apply to our intelligence personnel who are asked to question terrorists. Thats what the Presidents proposed legislation would do.

Steven G. BradburyI've enjoyed this opportunity to answer questions, and I hope that I've helped provide better understanding of the Administration's positions on these vital matters. Thank you!